Half the BattleLinda Hirshman on the Women Who Made Sexual-Harassment Law Possible

Anita Hill testifying before the Senate Judiciary Committee in 1991 (Photo credit: Bettman/Getty Images/Bitch Media Illustration)

Women’s anger has fueled every political movement in the United States, from suffrage to Civil Rights to #MeToo. Women’s anger is a powerful, unshakeable force that sends people from marginalized communities into the streets, the courtrooms, the classrooms, and beyond to fight for the more just world that our ancestors fought for and our descendants will fight for long after we’re gone.

“The Future is Furious” is a weeklong series about women’s anger—and, more specifically, about how that anger is policed, dismissed, and overlooked because its potent, transformative social and political power terrifies people. We get to decide how we wield our anger, and this series is a mere entry point for a canon of work about women’s rage. It is our hope that by the end of it, you’re revved up and ready to rage in a time when it’s more important than ever to put women’s anger to work.

If you’ve listened to the second season of Slate’s Slow Burn podcast, you probably heard Linda Hirshman’s voice in the episode “Bedfellows,” revisiting Bill Clinton’s affair with Monica Lewinsky, his subsequent impeachment, and the schism it created among feminists. Hirshman is a legal scholar, philosopher, and chronicler of social change: Her 2012 book Victory: The Triumphant Gay Revolution is a rigorous yet dishy recounting of gay liberation’s journey from underground to establishment; 2015’s Sisters In Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World looks at the legal decisions, divergent views, and necessary alliances of the first female Supreme Court justices.

So it’s not surprising that Hirshman’s new book (slated for publication in Spring 2019) is a deep dive into the foundational legal scholarship and feminist activism that made workplace sexual harassment visible—and combating it legally viable. Reckoning: The 50-Year Epic Battle Against Sexual Abuse and Harassment looks at groundbreaking early sexual-harassment prosecutions and the Black women who brought them to light; wrestles with the 1990s setbacks in reaction to Anita Hill and Monica Lewinsky; considers the social, political, and ethical impacts of #MeToo; and looks at Brett Kavanaugh’s Supreme Court confirmation—and Christine Blasey Ford’s testimony—in the context of political gamesmanship and the mythical “neutrality” of a judicial realm where women’s rights and well-being have never been prioritized.

In a time when movements for civil rights and justice are often willfully defanged with saccharine, ahistorical piety, Hirshman is intent on spotlighting the history, complexity, and, yes, anger that’s always been at the bedrock of battles we’re still fighting today. 

Tell me about the new book, Reckoning.

The book opens at Chappaquiddick, in 1969. It was the summer I graduated from law school and, as I write in the book, I believe that Chappaquiddick was the beginning of an unintended sea change. One of the nonfiction sources I read for my book—which was also a source for the recent movie—has Ted Kennedy, within 24 hours of going over the bridge into the water,  saying to someone, “I guess this ends my presidential campaign.” That moment marked the first time that a powerful politician had to pay a price for his relationship with a woman [who wasn’t] his wife. For a Kennedy, not getting to be president is considered a price. And then, of course, the media was revved up, and started going after other powerful men like Wilbur Mills [the powerful Arkansas congressman whose own 1974 booze-and-drug-fueled car accident involved a stripper named Fanne Foxe]. It was different, since Mills did not kill the woman he was with. But the Ben Bradlee-JFK agreement [to] look the other way began to come to an end.

So this is important because even though the Civil Rights Act—the legal source of the action against sexual harassment—was passed in 1964, we know that the Civil Rights Act standing alone, without the media’s attention, isn’t gonna do it. In the five years after Chappaquiddick, [feminist legal scholar] Catharine MacKinnon figured out that asking someone to service you sexually, in addition to all her other work duties, is unequal treatment. Why it took MacKinnon to figure out that this was a violation of the Civil Rights Act, I’m not sure. But it did, and she did.

MacKinnon’s question was not “Are women being treated differently [than] men?” but rather, Are they being dominated by and subordinated to men and being treated badly, not just unequally? The argument back in the ’70s, as the early sexual-harassment cases were going to the courts, was that this [behavior] is not unequal because the boss doesn’t ask all women to sleep with him; he just asks the attractive ones. That was the defense.

Rebecca Traister wrote that great piece about people minimizing sexual harassment as part of a larger phenomenon of minimizing women’s work. Not about sex, not about relationships, not about people getting their feelings hurt, but about women being able to do their jobs.

I think it’s both. Al Franken at the State Fair was not about work. Those women weren’t working; they were having their picture taken. And Al Franken, may he live a thousand years, treated their bodies like eclairs in a bakery case. In a political analysis, it’s not just about work; it’s about controlling access to your body. It’s hugely important.

But isn’t it also about preventing women from having a full life in public? So many people—and by “people” I mean people who have no experience with sexual harassment—will say, “Well, why didn’t she quit?” or “Why didn’t she just complain to a manager?” without taking into account that if you need that job, you’re unlikely to want to rock the boat.

I have a chapter on this in the book, about a woman named Tanya, one of the women involved in the sexual-harassment suit against McDonald’s. I tell her story so that readers—who are privileged by definition if they’re paying that kind of money for books—will meet someone who [can’t] imagine not desperately needing her job. And then, at the other end, there are privileged women and their legitimate aspirations to succeed and to use their capacities; they’re entitled to their jobs also.

I feel like I’ve lived my whole life in the public sphere. If I couldn’t write or teach law school or whatever, it would not be as bad as what would happen to Tanya, who might starve. But it also would not be a full human life. So of course work is very important. But I believe that the ability to protect your physical self from unwanted intrusions is much more central than Rebecca expressed in that wonderful piece.

When you survey sexual harassment from a historical perspective, what are the consistent themes? Has anything changed, or is what’s happening now as it’s always been?

It’s definitely not as it’s always been. We were making slow but steady progress from 1976, when MacKinnon published her paper on the sexual harassment of working women, before her book [1979’s Sexual Harassment of Working Women] came out. The first plaintiffs, all of whom were women of color in Washington, D.C., claimed the protection of the Civil Rights Act against the quid pro quo and hostile-environment harassment they’d been subject to. A woman named Paulette Barnes, who worked at the Environmental Protection Agency, goes to the lawyers’ committee because she thought of it [as] racial discrimination—which it was, because her race made her vulnerable. And somebody [on the committee] figures out that it’s sexual harassment. MacKinnon was starting to make the courts recognize it; and in 1986, in Meritor Savings Bank vs. Vinson, the Supreme Court recognized it.

And then you got the Anita Hill/Clarence Thomas hearings, And—just to circle back to the media—even though Thomas was confirmed, the media recognition of what happened at those hearings was a sit-in for the whole nation, right? There was slow but steady upward progress.

From a legal standpoint, what happened in the time between when MacKinnon wrote Sexual Harassment of Working Women and when Anita Hill was compelled to testify before the Senate Judiciary Committee?

From a legal perspective, cases where the Civil Rights Act was interpreted to prohibit both quid pro quo sexual harassment and the creation of a hostile environment [were] gathering steam during the ’70s. And those first cases revealed weaknesses in the system. The opinion in Meritor vs. Vinson—and then a series of opinions interpreting Meritor vs. Vinson—made it hard for plaintiffs. The court said, We’re not going to hold the bank responsible unless it offered no avenue for [plaintiff Mechelle Vinson] to complain, or she took her complaints to the top and wasn’t helped. They laid down a lot of things that plaintiffs have to do in order to sue a deep-pocketed employer. Employers set up Human Resources departments to catch the flak, and HR’s job was to protect the bosses; you had to complain to them or you couldn’t sue. Because of that, and because [women] knew they would lose their jobs by coming forward, and because they were ambitious—let’s just start with those three things—women mostly gagged it down.

What you have to ask is: When somebody decides that they’re no longer going to gag it down, has society made it possible for them to fight back? By recognizing the claim of sexual harassment at the Supreme Court level, American society made it possible for someone who wanted to fight back to fight back. Discrimination had to be severe and pervasive; you had to touch all the bases with Human Resources, you had to make your complaints promptly. So it wasn’t easy. But it was possible.

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I want to talk about anger. Harassment is something that people put up with for years, but often when they do speak out, their anger marks them as “bad” victims. We’ve internalized that we cannot betray anger even in a context where anger is absolutely warranted.

Anger in the first sexuaI-harassment cases wasn’t [publicly] visible. For a lot of women, they feel terrible because they’re being groped and treated [badly], so they quit and take less-good jobs. [Harassment] both treats them as if they are less powerful and then disempowers them. Women often become sick as a result of harassment; then they can’t go to work and so they’re dismissed for absenteeism. That’s a very common pattern.

Mechelle Vinson was motivated heavily by wanting to make a difference for other people. You hear that a lot. “I’m doing it for my sisters. I’m doing it for my daughters,” Tanya said to me, “so that no other minimum-wage worker at McDonald’s ever has to go through [what] I did.” There’s a lot of that altruism.

I know, as a historian of political movements, that you need to have some hope that you might be able to act to allow yourself to feel the anger. Saul Alinsky talks about this in Rules for Radicals: There has to be a crack in the establishment, there has to be the revolution of rising expectations. The first place I saw anger was in MacKinnon, who was denied teaching jobs at law schools, who was vilified and turned into a meme. It’s a minor miracle she didn’t have to drink hemlock. She was able to feel anger, and she had a wellspring of self-esteem to draw on. I think you have to have some degree of self-love to be able to get angry.

But mostly, women don’t allow themselves to truly feel the anger until they have some hope that they can make a difference. I think that’s what happened with Anita Hill. She didn’t just call up Joe Biden’s office; she started telling [her story] to people who would tell people who would tell people. And she was enough of a Washington insider to know that if she talked enough, sooner or later somebody would mention it at a dinner party. That’s exactly what happened. Hill, as with so many of the early plaintiffs in sexual-harassment cases, learned very early the high price of showing anger over their unequal treatment. It’s insane to expect someone who has also been a victim of America’s racist culture to take the risk of showing anger.

No social movement succeeds without coming to the anger place at some point.

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Do you feel like anger was able to flourish a little more after we witnessed Hill’s experience?

I do. The sight of those women on the steps of the House of Representatives—remember, they came from privileged backgrounds, they weren’t working for eight dollars an hour at McDonald’s, and they [allowed] themselves to feel their anger. And they manifested it [for others] when they climbed those steps—anger on behalf of Anita Hill, and [later], anger that Thomas got confirmed anyway.

I’m interested in the idea that anger is required at this point in history, because we know sexual harassment exists, we know it’s systemic, but we also know that the legal recourse to fight back still isn’t available to everyone. And we know that people who do come forward still pay an incredibly high price.

I have chronicled three and a half social movements: the feminist legal movement, the gay revolution, the #MeToo movement, and I’m about halfway through a book about the abolition movement. No social movement succeeds without coming to the anger place at some point. You get it in the stunningly angry content of William Lloyd Garrison’s Liberator, and the very angry memoirs of Frederick Douglass, and, my favorite example from the gay liberation movement, ACT-UP. I don’t know what it would be like to lead a social movement in someplace like Sweden; that’s not my area of expertise—but in America, you have to, at some point, demonstrate anger.

And I will tell you, the feminist movement against sexual harassment and abuse did not start out playing nice. I mean, there’s a reason why a clenched fist is still the emblem of the ’60s women’s movement. But at the same time, all along, women who needed their jobs and were ambitious were taking that harassment; [they were] in the closet at the same time that they were marching down 5th Avenue.

There was no reason to think that there wouldn’t be more progress. But then [we] elected Bill Clinton, and Bill Clinton, boxed in as he was from his usual sources of sexual transgression, took up with a 21-year-old three months out of college. And within a matter of months after it became public, the feminist movement mostly closed ranks around him. It was a turning point.

There was definitely a generational split among feminists in talking about Clinton. I don’t think the term “slut-shaming” was in use then, but we definitely recognized how many people—including older feminists—were unabashedly slut-shaming Monica Lewinsky. And we were definitely talking about whether it was possible for her to have had full autonomy given the power imbalance between them.

Bill_Clinton_and_Monica_Lewinsky_on_February_28,_1997_cropped.jpg

Cropped photograph of Monica Lewinsky next to President Clinton in the Oval Office, February 28, 1997

Monica Lewinsky and Bill Clinton in the Oval Office on February 28, 1997 (Photo credit: Wikimedia Commons)

Well, it wasn’t “Give me a blow job or you’ll lose your clerical position.” The movement against sexual harassment at work was never just about that. It was built on a theoretical foundation of power inequality, and a radical statement: All I’m asking is that you get your foot off my neck. It got legalized and sanitized and made palatable and not so angry and not so political. But it has very radical roots, which were still there when the Clinton scandal surfaced.

Clinton escaped the logical consequences of the feminist movement against sexual harassment and abuse; Gloria Steinem turned herself into a pretzel to defend him. But it’s funny, the guys from Slow Burn unearthed a recording that I had completely forgotten about, and I listened to it before my interview with them and heard myself saying, “All you have to do is listen to what Monica Lewinsky says about what she was experiencing and you would know how wrong it was.” Maybe it wasn’t technically illegal. Maybe it was not unwelcome, and therefore not rape, and therefore not sexual harassment. But from a moral standpoint, and from a political standpoint, it was wrong! Whoever said that the only wrong thing in the world has to be an illegal thing?

So much of the pushback against #MeToo is from people who seem to believe that unless there’s some kind of legal basis to define a behavior as sexual harassment, it doesn’t exist. But there’s a ton of ethical area between “This is textbook sexual harassment” and “Nothing at all happened,” and it usually is about power imbalances.

It is not only legal, and it’s not only about work. The reason that people try to confine [them] to the workplace is that it’s palatable and and easy to understand and talk about publicly. But then you get your Aziz Ansari situations. With Clinton, there was the hidden law of adultery, as Jonathan Rausch called it in the ’90s, which is: You will lie to us about committing adultery, and we will pretend to believe you. And that basically treats sexual relations as something only for the legal system, and not for the political system, and not for the moral system—as if none of those are related. But if you look at what Lewinsky [said at the time] about her experience with him, you see that the power imbalance was so great as to almost make her delusional. [She wasn’t] stripped of her free will with a gun, but with a carrot.

When I went back [and looked at] Lewinsky’s grand-jury testimony, I saw it even more clearly. It is a wrenching story. And the feminist movement took the position that, as far as sex is concerned, pretty much anything goes. I said then—and it did not make me popular—that that was a mistake, and that sex is an act between human beings and is therefore both a political and a moral act as well as a physical act and a legal act. You can’t make a category called “sex” and then claim none of the ordinary rules of human behavior apply there. How Bill Clinton treated Monica Lewinsky was important as a matter of social learning. And the lesson that people took away from it is that sex is a realm where no social, political, or moral rules apply.

What are the ways that anger is productive, in a nuts-and-bolts sense of changing policy, changing minds, and changing the frame around sexual harassment?

People who feel anger do things like demand that the people who are abusing them stop, and demand that the people who are supposedly answerable to them answer, and, if [those] people don’t answer, demand to replace them. Gretchen Carlson files a lawsuit, and people talk to Ronan Farrow, and eventually, instead of just gagging it down, there are 4 million women in the streets in pink hats recognizing each other, showing themselves to each other. They’re showing their anger in real life, reinforcing their understanding that they’re legitimate, that the grievances that they’ve experienced are legitimate. Aristotle said it: If you are reduced by another human actor, you have an appropriate desire to be made whole. And that’s what legitimate anger comes from.

This interview has been edited for length and clarity.

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by Andi Zeisler
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Andi Zeisler is the cofounder of Bitch Media and the author of We Were Feminists Once: From Riot Grrrl to CoverGirl®, the Buying and Selling of a Political Movement. You can find her on Twitter.